Violent Video Game Ban May Be Headed For Supreme Court

The law against selling violent video games to minors is currently under injunction – but will it last?

SACRAMENTO – California Attorney General Jerry Brown today announced that the state will appeal the Ninth Circuit Court of Appeals ruling upholding an injunction allowing violent video games to be sold to minors to the U.S. Supreme Court.

The California Civil Code Sec. 1746.1(a) prohibits anyone from selling or renting a "violent video game" – that is, a "game in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being" – to a minor, under penalty of a $1,000 fine for each such sale or rental.

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There are a couple of other factors that enter into whether a particular game fits the description, including some that would seem hauntingly familiar to those knowledgeable about obscenity law. For instance, the ban would apply if "[a] reasonable person, considering the game as a whole, would find [it] appeals to a deviant or morbid interest of minors"; "[i]t is patently offensive to prevailing standards in the community as to what is suitable for minors"; and "[i] causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors."

The ban would also apply if the game "[e]nables the player to virtually inflict serious injury upon images of human beings or characters with substantially human characteristics in a manner which is especially heinous, cruel, or depraved in that it involves torture or serious physical abuse to the victim," and the law further attempts to define what it means by "cruel," "heinous," "depraved," "serious physical abuse" and "torture."

This unconstitutionally vague piece of legalese was the brainchild of San Francisco State Sen. Leland Yee, but practically from the moment it was signed into law by Gov. Arnold Schwarzenegger on Oct. 7, 2005, the ban was challenged by the Video Software Dealers Association (VSDA), which has since become the Entertainment Merchants Association (EMA).

On Aug. 6, 2007, U.S. District Judge Ronald M. Whyte issued a permanent injunction against the application of the law; an injunction that was upheld in February of this year by the Ninth Circuit.

"California's children are exposed every day to video games that glamorize killing sprees, torture and sexual assault," Brown charged in a statement accompanying the announcement of his petition to the Supreme Court.

"By prohibiting the sale of violent video games to children under the age of 18 and requiring these games to be clearly labeled, this law would allow parents to make better informed decisions for their kids," Schwarzenegger said when asked about the appeal. "I will continue to vigorously defend this law and protect the well-being of California's kids."

But the EMA has been clear that it doesn't support minors' access to "Mature"-rated games – that is, games recommended for ages 17 and above – but it opposes the current law for several reasons, not the least of which is that even with the copious definitions of what constitutes a "violent video game," the law remains unconstitutionally vague. It also notes that such laws are unnecessary in light of the age-specific ratings attached to each game, the voluntary education and enforcement programs instituted by video game retailers, and the fact that federal courts have consistently ruled that such bans on "depictions of violence" violate minors' First Amendment rights.

"The Supreme Court has carefully limited obscenity to sexual content," opined the Ninth Circuit in a 3-0 ruling upholding the injunction. The court also found that there is no convincing evidence that violent video-game imagery causes psychological damage to young people.

And then there's the money:

"It boggles the mind that, on a day when the state of California finds itself in the worst fiscal crisis it has ever faced and is considering massive layoffs of teachers and cuts to public services, the state would choose to waste tens of thousands of dollars on pursuing this frivolous appeal," said EMA Vice-President of Public Affairs Sean Bersell in a statement regarding the appeal. "So far, this case has cost the state of California approximately $400,000 just in legal fees and court costs that it has had to pay the plaintiffs. This doesn’t even include the state’s legal fees and costs. And if this appeal is unsuccessful, as it will be in all likelihood, the state will owe the plaintiffs even more in legal fees and court costs."

"California's citizens should see this for what it is: A complete waste of the state's time and resources," agreed Michael D. Gallagher, president and CEO of co-plaintiff Entertainment Software Association, which represents video game manufacturers. "California is facing a $21 billion budget shortfall coupled with high unemployment and home foreclosure rates. Rather than focus on these very real problems, Governor Schwarzenegger has recklessly decided to pursue wasteful, misguided and pointless litigation."

Bersell also noted that within the past ten years, eight similar laws have been enacted in Oklahoma, Louisiana, Minnesota, Michigan, Illinois and the cities of St. Louis and Indianapolis, all of which have been ruled unconstitutional by federal courts.

"The taxpayers of California should demand that their elected officials stop wasting precious tax dollars on this quixotic quest," Bersell declared.